Seidemann v. Professional Staff Congress Local 2334

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DAVID SEIDEMANN and BRUCE MARTIN,

individually and on behalf of all others similarly

situated,

Plaintiffs,

-v.-

PROFESSIONAL STAFF CONGRESS LOCAL

2334; FACULTY ASSOCIATION OF SUFFOLK

COUNTY COMMUNITY COLLEGE; UNITED 18 Civ. 9778 (KPF)

UNIVERSITY PROFESSIONS, FARMINGDALE

STATE COLLEGE CHAPTER; NATIONAL OPINION AND ORDER

EDUCATION ASSOCIATION OF THE UNITED

STATES; AMERICAN FEDERATION OF

TEACHERS; AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS; AMERICAN ASSOCIATION

OF UNIVERSITY PROFESSORS COLLECTIVE

BARGAINING CONGRESS; and NEW YORK

STATE UNITED TEACHERS,

Defendants.

KATHERINE POLK FAILLA, District Judge:

Plaintiffs David Seidemann and Bruce Martin bring this putative class

action against Defendants Professional Staff Congress Local 2334 (“PSC”),

American Federation of Teachers (“AFT”), American Federation of Labor and

Congress of Industrial Organizations (“AFL-CIO”), American Association of

University Professors Collective Bargaining Congress (“AAUPCBC”), New York

State United Teachers (“NYSUT”), National Education Association of the United

States (“NEA”), Faculty Association of Suffolk County Community College

(“FASCCC”), and United University Professions, Farmingdale State College

Chapter (“UUP”). Prior to the Supreme Court’s decision in Janus v. American

Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct.

2448 (2018), Plaintiffs were required to pay agency shop fees to the unions that

represented their respective places of employment, in compliance with New

York Civil Service Law § 208 and as authorized by Abood v. Detroit Board of

Education, 431 U.S. 209 (1977). Plaintiffs now allege that they are entitled to

the return of all agency shop fees previously paid, raising constitutional claims

under 42 U.S.C. § 1983 and common-law claims for conversion and unjust

enrichment. Additionally, Plaintiffs seek a declaratory judgment stating that

both compulsory agency shop fees and New York State laws that authorize

them are unconstitutional, as well as an injunction against the collection of

those fees. Defendants move to dismiss Plaintiffs’ suit in its entirety under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth

in the remainder of this Opinion, Defendants’ motion to dismiss is granted.

BACKGROUND1

A. Legal Background

Before stating the facts of this case, it is necessary to understand the

legal backdrop to Plaintiffs’ claims. In 1977, the Supreme Court addressed

1 The facts contained in this Opinion are drawn primarily from Plaintiffs’ Amended

Complaint, which is the operative pleading in this case and is referred to in this Opinion

as the “Amended Complaint” or “Am. Compl.” (Am. Compl. (Dkt. #65)). The Court has

not considered the declaration submitted by Plaintiff Seidemann as part of his

submission in opposition to Defendants’ motion to dismiss (Dkt. #93), as Seidemann

has offered no legal basis for the Court to do so. See Marolla v. Devlyn Optical LLC,

No. 18 Civ. 7395 (VSB), 2019 WL 4194330, at *4 n.5 (S.D.N.Y. Sept. 3, 2019) (citing

Goodman v. Port Auth. of N.Y. & N.J., 850 F. Supp. 2d 363, 381 (S.D.N.Y. 2012)

(“Plaintiff’s additional factual assertions, provided in his opposition papers and affidavit,

are inadmissible.”); Wachtel v. Nat’l R.R. Passenger Corp., No. 11 Civ. 613 (PAC), 2012

WL 292352, at *2 (S.D.N.Y. Jan. 30, 2012) (“While Plaintiff attached an affidavit to his

opposition brief in an attempt to support his argument, the Court cannot consider

affidavits in ruling on a motion to dismiss.”)); see also Troy v. City of New York, No. 13

whether unions could compel non-members that they nevertheless represented

to pay service fees pursuant to an “agency shop” clause; such fees are known

colloquially as agency shop fees. See Abood v. Detroit Bd. of Ed., 431 U.S. 209,

212 (1977). In a unanimous opinion, the Supreme Court held that such fees

were constitutional insofar as they were spent in advancement of the union’s

duties as collective-bargaining representative, but that they could not be spent

on political or ideological causes over the objection of the represented

employee. See id. at 235-36. This remained the law of the land for decades,

albeit with sporadic warnings in dicta about its potential infirmity, see, e.g.,

Harris v. Quinn, 573 U.S. 616, 635-38 (2014), and states such as New York

enacted statutes in reliance on Abood’s holding, see N.Y. Civ. Serv. L. § 208(3)

(McKinney 2019). In June 27, 2018, however, the Court expressly overruled

Abood and declared all agency shop fees in the public employment setting to be

Civ. 5082 (AJN), 2014 WL 4804479, at *1 (S.D.N.Y. Sept. 25, 2014) (“[T]he Court does

not rely on factual assertions made for the first time in Plaintiff’s opposition brief … as

it is axiomatic that the Complaint cannot be amended by briefs in opposition to a

motion to dismiss.” (internal citations and quotation marks omitted)), aff’d, 614 F.

App’x 32 (2d Cir. 2015) (summary order).

The Court also draws jurisdictional facts from the exhibits attached to the Declaration

of Deborah E. Bell in Support of Defendants’ Motion to Dismiss the Amended

Complaint, referred to as the “Bell Decl.” (Dkt. #89); the Declaration of Tina M. George

in Support of Defendants’ Motion to Dismiss the Amended Complaint, referred to as the

“George Decl.” (Dkt. #90); and the Declaration of Peter N. DiGregorio in Support of

Defendants’ Motion to Dismiss the Amended Complaint, referred to as the “DiGregorio

Decl.” (Dkt. #91). Defendants are permitted to present extrinsic evidence showing lack

of subject matter jurisdiction on a motion brought under Federal Rule of Civil Procedure

12(b)(1). See Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 57 (2d Cir. 2016).

For ease of reference, the Court refers to the parties’ briefing as follows: Defendants’

opening brief as “Def. Br.” (Dkt. #83); Plaintiffs’ opposition brief as “Pl. Opp.” (Dkt. #92);

and Defendants’ reply brief as “Def. Reply” (Dkt. #94).

violative of the First Amendment. See Janus v. Am. Fed’n of State, Cty., & Mun.

Emps., Council 31, 138 S. Ct. 2448, 2459-60 (2018).

B. Factual Background

At all relevant times, Plaintiffs were college professors at public

educational institutions in New York. (Am. Compl. ¶¶ 1-2). David Seidemann

was a professor at the City University of New York (“CUNY”) (id. at ¶ 1), while

Bruce Martin was a professor at both Suffolk County Community College

(“SCCC”) and Farmingdale State College (“FSC”) (id. at ¶ 2). Both plaintiffs

thus qualified as “public employees” for purposes of N.Y. Civ. Serv. Law § 208.

As a faculty member at CUNY, Seidemann was represented by Defendant PSC

and thus was required to pay agency shop fees to PSC, portions of which were

then forwarded to Defendants AFT, AFL-CIO, AAUPCBC, and NYSUT. (Id. at

¶¶ 1, 3). Of note, however, Seidemann was never a member of PSC and never

affirmatively consented to pay agency shop fees. (Id. at ¶ 1).

Martin, for his part, was represented by Defendant FASCCC in his

capacity as a professor at SCCC and by Defendant UUP in his capacity as a

professor at FSC, and thus was required to pay agency shop fees to both

organizations. (Am. Compl. ¶¶ 2, 4-5). Portions of these agency shop fees were

then forwarded to Defendants AFT, AFL-CIO, NEA, and NYSUT. (Id. at ¶¶ 4-5).

Like Seidemann, Martin was never a member of either FASCCC or UPP, and

never affirmatively consented to pay agency shop fees. (Id. at ¶ 2). All agency

shop fees were paid via a direct deduction from Plaintiffs’ paychecks, as

authorized by N.Y. Civ. Serv. Law § 208(3). (Id. at ¶ 13). Neither Seidemann

nor Martin alleges that he has been required to pay agency shop fees since the

Supreme Court’s decision in Janus.

C. Procedural Background

Seidemann filed his initial complaint in this action on October 24, 2018,

several months after Janus was issued; initially, he named AAUPCBC, AFL-

CIO, AFT, NYSUT, and PSC as Defendants. (Dkt. #1). On January 11, 2019,

Defendants asked the Court for leave to file a motion to dismiss (Dkt. #46), to

which Seidemann responded on January 16, 2019 (Dkt. #47). The parties

appeared before the Court for a pre-motion conference on January 31, 2019,

during which time the Court set a briefing schedule for the proposed motion to

dismiss. (Minute Entry of January 31, 2019). The Court then adjourned that

schedule after granting Seidemann’s request of March 20, 2019, to file an

amended class action complaint. (Dkt. #60, 62).

Seidemann filed an Amended Complaint, joined by Martin, on April 12,

2019, in which the pair added FASCCC, NEA, and UUP as Defendants. (Dkt.

#65). Defendants filed their motion to dismiss, along with an accompanying

memorandum and numerous declarations, on May 24, 2019. (Dkt. #82).

Plaintiffs filed a brief in opposition, along with a declaration, on June 21, 2019.

(Dkt. #93). Defendants filed their reply brief on July 12, 2019. (Dkt. #94).

DISCUSSION2

A. Applicable Law

1. Motions to Dismiss Under Fed. R. Civ. P. 12(b)(1)

Defendants challenge Plaintiffs’ request for an injunction and a

declaratory judgment as non-justiciable for reasons of mootness. (See Def.

Br. 1). The Court analyzes these claims for equitable relief under the rubric of

Rule 12(b)(1). See Platinum-Montaur Life Scis. LLC v. Navidea

Biopharmaceuticals, Inc., No. 17 Civ. 9591 (VEC), 2018 WL 5650006, at *2

(S.D.N.Y. Oct. 31, 2018) (citing All. For Envtl. Renewal, Inc. v. Pyramid

Crossgates Co., 436 F.3d 82, 89 n.6 (2d Cir. 2006)) (“As the Second Circuit has

explained … standing challenges are jurisdictional questions that are properly

2 The Court notes that while it is, to its knowledge, the first court in this District to hear

claims regarding whether non-union-member public employees are entitled to the

refund of their agency shop fees, substantially identical claims have been brought, and

disposed of, across the country. See, e.g., Ogle v. Ohio Civ. Serv. Emps. Ass’n, AFSCME,

Local 11, 397 F. Supp. 3d 1076 (S.D. Ohio 2019); Babb v. Cal. Teachers Ass’n, 378 F.

Supp. 3d 857 (C.D. Cal. 2019); Wholean v. CSEA SEIU Local 2001, No. 18 Civ. 1008

(WWE), 2019 WL 1873021 (D. Conn. Apr. 26, 2019); Akers v. Md. State Educators Ass’n,

376 F. Supp. 3d 563 (D. Md. 2019); Bermudez v. Serv. Emps. Int’l Union, Local 521,

No. 18 Civ. 4312 (VC), 2019 WL 1615414 (N.D. Cal. Apr. 16, 2019); Mooney v. Ill. Educ.

Ass’n, 372 F. Supp. 3d 690 (C.D. Ill. 2019), aff’d, 942 F.3d 368 (7th Cir. 2019); Lee v.

Ohio Educ. Ass’n, 366 F. Supp. 3d 980 (N.D. Ohio 2019); Hough v. SEIU Local 521,

No. 18 Civ. 4902 (VC), 2019 WL 1785414 (N.D. Cal. Apr. 16, 2019); Janus v. Am. Fed’n

of State, Cty., & Mun. Emps., Council 31, AFL-CIO, No. 15 Civ. 1235 (RWG), 2019 WL

1239780 (N.D. Ill. Mar. 18, 2019); Carey v. Inslee, 364 F. Supp. 3d 1220 (W.D. Wash.

2019); Crockett v. NEA-Alaska, 367 F. Supp. 3d 996 (D. Alaska 2019); Cook v. Brown,

364 F. Supp. 3d 1184 (D. Or. 2019); Danielson v. Am. Fed’n of State, Cty., & Mun.

Emps., Council 28, AFL-CIO, 340 F. Supp. 3d 1083 (W.D. Wash. 2018). Although there

are slight variations between and among the above cases, their underlying facts and

legal arguments largely mirror the ones before this Court, and the respective district

courts have offered thoughtful and comprehensive analyses of these arguments.

Although the Court is not bound by any of the other district court opinions and has

conducted its own independent analysis, that analysis is shaped by the persuasive

reasoning of these other courts.

resolved under Rule 12(b)(1).”), vacated and remanded on other grounds, 943

F.3d 613 (2d Cir. 2019).

Rule 12(b)(1) permits a party to move to dismiss a complaint for “lack of

subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). “A case is properly

dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the

district court lacks the statutory or constitutional power to adjudicate it.”

Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y. 2016)

(quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

The Second Circuit has drawn a distinction between two types of

Rule 12(b)(1) motions: (i) facial motions and (ii) fact-based motions. See Carter

v. HealthPort Technologies, LLC, 822 F.3d 47, 56-57 (2d Cir. 2016); see also

Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017). A facial

Rule 12(b)(1) motion is one “based solely on the allegations of the complaint or

the complaint and exhibits attached to it.” Carter, 822 F.3d at 56. A plaintiff

opposing such a motion bears “no evidentiary burden.” Id. Instead, to resolve

a facial Rule 12(b)(1) motion, a district court must “determine whether [the

complaint and its exhibits] allege[ ] facts that” establish subject matter

jurisdiction. Id. (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d

140, 145 (2d Cir. 2011) (per curiam)). And to make that determination, a court

must accept the complaint’s allegations as true “and draw[ ] all reasonable

inferences in favor of the plaintiff.” Id. at 57 (internal quotation marks and

citation omitted).

“Alternatively, a defendant is permitted to make a fact-based

Rule 12(b)(1) motion, proffering evidence beyond the complaint and its

exhibits.” Carter, 822 F.3d at 57. “In opposition to such a motion, [plaintiffs]

must come forward with evidence of their own to controvert that presented by

the defendant, or may instead rely on the allegations in the[ir p]leading if the

evidence proffered by the defendant is immaterial because it does not

contradict plausible allegations that are themselves sufficient to show

standing.” Katz, 872 F.3d at 119 (internal citations and quotations omitted). If

a defendant supports his fact-based Rule 12(b)(1) motion with “material and

controverted” “extrinsic evidence,” a “district court will need to make findings of

fact in aid of its decision as to subject matter jurisdiction.” Carter, 822 F.3d at

57.

2. Motions to Dismiss Under Fed. R. Civ. P. 12(b)(6)

Defendants seek to dismiss the remainder of the Amended Complaint

pursuant to Rule 12(b)(6). When considering a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), a court must “draw all reasonable

inferences in Plaintiff’s favor, assume all well-pleaded factual allegations to be

true, and determine whether they plausibly give rise to an entitlement to relief.”

Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation

marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff

is entitled to relief if he alleges “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While

Twombly does not require heightened fact pleading of specifics, it does require

enough facts to nudge plaintiff’s claims across the line from conceivable to

plausible.” (internal quotation marks omitted) (citing Twombly, 550 U.S. at

570)).

“Where a complaint pleads facts that are ‘merely consistent with’ a

defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 557). Moreover, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions.

Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

B. Analysis

Defendants advance three principal arguments for dismissal: (i) Plaintiffs’

claims for prospective relief are moot due to Defendants’ undisputed

compliance with Janus since June 27, 2018; (ii) Plaintiffs’ claims for a refund

under 42 U.S.C. § 1983 fail as a matter of law because Defendants can rely on

the good-faith defense; and (iii) Plaintiffs’ common-law claims also fail as a

matter of law on various grounds. (See Def. Br. 1-3). The Court will address

each argument in turn.

1. The Court Lacks Subject Matter Jurisdiction over Plaintiffs’

Claims for a Declaratory Judgment and Injunctive Relief3

Federal courts are courts of limited jurisdiction, “and lack the power to

disregard such limits as have been imposed by the Constitution or Congress.”

Platinum-Montaur Life Scis., LLC v. Navidea Biopharmaceuticals, Inc., 943 F.3d

613, 616 (2d Cir. 2019). Article III of the Constitution “limits the jurisdiction of

federal courts to ‘Cases’ and ‘Controversies,’” thereby “restrict[ing] the authority

of federal courts to resolving ‘the legal rights of litigants in actual

controversies.’” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)

(internal quotation marks omitted) (quoting Valley Forge Christian College v.

Americans for Separation of Church and State, Inc., 454 U.S. 471 (1982)). The

“Case” and “Controversy” requirement places the burden on “those who invoke

the power of a federal court to demonstrate standing — a ‘personal injury fairly

traceable to the defendant’s allegedly unlawful conduct and likely to be

redressed by the requested relief.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 90

(2013). A case ceases being a “Case” or “Controversy” — or, in other words,

becomes moot — “when the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.” Id. at 91. This is the case

3 At the outset, the Court points out that it is of no moment that Plaintiffs have styled

their claim as a putative class action if they themselves cannot demonstrate that they

have standing to bring this case. “[N]amed class plaintiffs must allege and show that

they personally have been injured, not that the injury has been suffered by other,

unidentified members of the class to which they belong and which they purport to

represent.” Hidalgo v. Johnson & Johnson Consumer Cos., Inc., 148 F. Supp. 3d 285,

292 (S.D.N.Y. 2015) (citing Central States SE & SW Areas Health & Welfare Fund v.

Merck-Medco Managed Care, LLC, 443 F.3d 181, 199 (2d Cir. 2005)).

“[n]o matter how vehemently the parties continue to dispute the lawfulness of

the conduct that precipitated the lawsuit.” Id.

Starting with Plaintiffs’ pleadings, the Court observes that at no point do

Plaintiffs allege that Defendants have failed to comply with the Supreme

Court’s decision in Janus or that Plaintiffs have paid agency shop fees following

that decision. (See Am. Compl. ¶¶ 1-2 (stating only that Plaintiffs were

required to pay agency shop fees “prior to Janus”)). Indeed, the only allegation

of continuing harm is a conclusory claim that Defendants “continue to violate

Plaintiffs’ First Amendment rights to free speech and association.” (Id. at ¶ 33).

Thus, given the absence of any plausible allegation of present or future harm,

Plaintiffs lack standing on the face of the Amended Complaint alone. See

O’Neill v. Standard Homeopathic Co., 346 F. Supp. 3d 511, 526 (S.D.N.Y. 2018)

(noting that “Plaintiffs lack standing to pursue injunctive relief where they are

unable to establish a ‘real or immediate threat’ of injury” (quoting Nicosia v.

Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016))).

This finding is only buttressed by Defendants’ additional evidence —

which, as noted, the Court may properly consider on a Rule 12(b)(1) motion.

See Carter, 822 F.3d at 57. Specifically, Defendants have presented

uncontroverted evidence that all relevant entities — the Defendant Unions, the

Plaintiffs’ employers, and the New York State Comptroller’s Office —

immediately complied with Janus by ceasing the deduction of agency shop fees

from Plaintiffs’ paychecks and reimbursing to Plaintiffs any fees that might

have been deducted after June 27, 2018. (See Bell Decl. ¶¶ 13-14, 16-17, 20-

21, 24; George Decl. ¶¶ 15-16, 18-19, 22; DiGregorio Decl. ¶¶ 18-21, 24-25).

Moreover, Defendants PSC, FASCCC, and UUP have affirmed their conviction

that compelled agency shop fees in the public sector are no longer

constitutional in the wake of Janus (see Bell Decl. ¶ 27; George Decl. ¶ 27;

DiGregorio Decl. ¶ 22), and that they have no intention of, and in most cases

are incapable of, resuming the deduction of agency shop fees from Plaintiffs’

paychecks (see Bell Decl. ¶¶ 30-31; George Decl. ¶¶ 22, 29; DiGregorio

Decl. ¶ 23; see also Bell Decl., Ex. 3 (providing Payroll Bulletin No. 1660 from

the New York State Comptroller’s Office, which notifies of the cessation of all

compelled agency shop fees in light of Janus)). On this record, the Court

cannot discern a basis for Plaintiffs to assert Article III injury at the time they

filed this suit, or, in the alternative, why their claims for prospective relief are

not now moot.4 See Berman v. N.Y. State Pub. Emp. Fed’n, No. 16 Civ. 204

(DLI) (RLM), 2019 WL 1472582, at *3 (E.D.N.Y. Mar. 31, 2019) (finding that

claims based on pre-Janus conduct were moot given Payroll Bulletin No. 1660

and defendants’ acknowledgement of the illegality of compelled agency shop

fees); Lamberty v. Conn. State Police Union, No. 15 Civ. 378 (VAB), 2018 WL

5115559, at *9 (D. Conn. Oct. 19, 2018) (finding that claims based on pre-

4 The Court briefly acknowledges that, insofar as the Court dismisses Plaintiffs’ claims for

prospective relief based on a lack of standing as opposed to mootness, its reasoning

differs slightly from the other district courts that have heard substantially similar

claims. See supra at 6 n.2. The Court believes that the other courts’ focus on mootness

is in part due to the timing of their respective actions — some were filed prior to

Janus — and in part due to the parties’ briefing focusing on mootness. Indeed,

Defendants here primarily argue for dismissal based on mootness. (See Def. Br. 9).

However, despite the slightly different analytical path, the Court nonetheless finds the

prior district court opinions helpful and cites to them where appropriate.

Janus conduct were moot where “none of the Defendants in this case are

disputing that the law of the land has changed, or are trying to collect agency

fees”).

Plaintiffs raise three counter-arguments, all of which are easily rebutted.

First, Plaintiffs claim that the “voluntary cessation” exception to the mootness

doctrine should apply here. (See Pl. Opp. 2-3 n.6). The Court does not believe

that mootness is the correct analytical framework for this situation, given that

Plaintiffs have failed to plead facts or to present evidence demonstrating that a

controversy existed when they brought suit. See Ogle v. Ohio Civ. Serv. Emps.

Ass’n, AFSCME, Local 11, 397 F. Supp. 3d 1076, 1085 (S.D. Ohio 2019)

(explaining that mootness applies when an actual controversy existed at the

outset of the suit but later ceased to exist, while standing applies when no

controversy exists at the outset). Although mootness and standing are linked,

see Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528

U.S. 167, 170 (2000) (discussing the Supreme Court’s “repeated description of

mootness as ‘the doctrine of standing set in a time frame’”), they differ

significantly in that they entail different burdens, see Mhany Management, Inc.

v. County of Nassau, 819 F.3d 581, 603 (2d Cir. 2016). “The burden of

establishing standing falls on the plaintiff,” but “the burden of showing

mootness … falls on a defendant.” Mhany Mgmt., 819 F.3d at 603.

Plaintiffs here bear the burden of proving that they had standing to

request prospective relief at the outset, but the only facts they allege are that

they were subjected to unlawful conduct prior to Janus. (See Am. Compl. ¶¶ 1-

2). And as noted, Plaintiffs cannot rely on that prior unlawful conduct to

establish standing for prospective relief. See Shain v. Ellison, 356 F.3d 211,

215 (2d Cir. 2004) (explaining that plaintiff “cannot rely on past injury to

satisfy the injury[-in-fact] requirement [of standing] but must show a likelihood

that he will be injured in the future” (internal ellipsis removed) (quoting

Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998))). Thus,

Plaintiffs have failed to establish that they have standing to pursue prospective

relief, whether it be injunctive or declaratory in nature. The Court need not

discuss the “voluntary cessation” doctrine, as mootness is not at issue here.

Even if it were, Plaintiffs’ claims would be unequivocally moot. See Wholean v.

CSEA SEIU Local 2001, No. 18 Civ. 1008 (WWE), 2019 WL 1873021, at *3 (D.

Conn. Apr. 26, 2019) (finding plaintiffs’ claims moot on substantially identical

facts because “[i] the Supreme Court has already determined the issue, and

[ii] defendants have demonstrated that collection of such fees has ceased and is

unlikely to recur”).

Second, Plaintiffs argue that because Janus did not directly address the

constitutionality of N.Y. Civ. Serv. Law § 208, the Court is still obligated to

declare that statute unconstitutional. (See Pl. Opp. 3 n.7). Plaintiffs

specifically analogize to Jernigan v. Crane (see id.), in which the Eighth Circuit

held that the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct.

2584 (2015), did not moot a suit challenging Arkansas’s laws barring same-sex

marriage. See 796 F.3d 976, 979-80 (8th Cir. 2015). Again, this is an

argument sounding on mootness, and the Court has already determined that

mootness is not at play here because of Plaintiffs’ antecedent failure to

establish standing. Regardless, Jernigan is inapposite because the Eighth

Circuit there noted that Obergefell specifically invalidated only the state laws

challenged by the petitioners. See Jernigan, 796 F.3d at 979 (quoting

Obergefell, 135 S. Ct. at 2591). Janus, by contrast, had a much broader

holding: “States and public-sector unions may no longer extract agency fees

from nonconsenting employees.” Janus, 138 S. Ct. at 2486. This broad

holding covers all state laws authorizing the extraction of agency fees from

nonconsenting employees, including New York’s statute. See Diamond v. Penn.

State Educ. Ass’n, 399 F. Supp. 3d 361, 388 (W.D. Pa. 2019) (explaining that

Obergefell was written narrowly to hold invalid particular states’ laws, while

“Janus broadly overruled Abood,” “moot[ing] controversies in ways Obergefell’s

narrow holding did not”).

Third, Plaintiffs cite United States Department of Treasury, Bureau of

Alcohol, Tobacco and Firearms v. Galioto, 477 U.S. 556 (1986), for the

proposition that the New York legislature’s failure to repeal N.Y. Civ. Serv. Law

§ 208 provides Plaintiffs with standing to obtain injunctive relief. (See Pl.

Opp. 3 n.9). Plaintiffs, however, have flipped the earlier case on its head. The

Galioto court held that the plaintiff’s case had become moot because Congress

had amended the problematic statute. See Galioto, 477 U.S. at 560-61. It did

not hold the inverse — that a case remains live so long as the legislature

retains a problematic statute on the books. As has already been noted above

and by numerous other district courts, Janus fundamentally changed the law

of the land, see, e.g., Diamond, 399 F. Supp. 3d at 386-87; Lamberty, 2018 WL

5115559, at *9, and by virtue of the Supremacy Clause, Janus’s broad holding

preempts any state law to the contrary, see U.S. Const. art. VI; Cooper v.

Aaron, 358 U.S. 1, 18 (1958). Neither Defendants nor any agent of New York

State has argued to the contrary. Thus, in lieu of an actual dispute, the Court

is back where it started: Plaintiffs lack standing. See Symczyk, 569 U.S. at 71.

2. Plaintiffs Fail to State a Claim Under § 1983

Plaintiffs seek retrospective, and not merely prospective, relief. In this

regard, they bring claims under 42 U.S.C. § 1983, alleging that Defendants

violated their First Amendment rights to free speech and association, and

demanding a refund “of all agency shop fees unlawfully withheld or collected

from Plaintiffs.” (Am. Compl. ¶¶ 33 & Ex. E). Defendants argue (see Def.

Br. 13), and Plaintiff disputes (see Pl. Opp. 8-9), that the good-faith defense

applies in this case and bars Plaintiffs’ claims under § 1983.

Section 1983 “provides a cause of action against persons who, acting

under color of state law, subject individuals to the ‘deprivation of any rights,

privileges, or immunities secured by the Constitution and laws’ of the United

States.” Davis v. N.Y.C. Housing Auth., 379 F. Supp. 3d 237, 244 (S.D.N.Y.

2019) (quoting 42 U.S.C. § 1983). Defendants do not concede that they acted

under color of state law or qualify as state actors (see Def. Br. 13 n.3), but the

Court will conduct its analysis based on the assumption that Defendants

indeed fall within § 1983’s ambit, albeit without deciding the question.

Therefore, the primary question is whether Defendants are correct about the

application of the good-faith defense.5

The good-faith defense — a defense that private actors can raise in

response to § 1983 claims — has a murky history that is worth exploring. In

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 (1982), the Supreme Court

held that private actors could be held liable under § 1983. However, the Court

chose not to address whether a defense should be available for “private

individuals who innocently make use of seemingly valid state laws” that are

“subsequently held to be unconstitutional,” as is available for government

actors through the doctrines of good faith and qualified immunity. See Lugar,

457 U.S. at 942 n.23. The Court revisited the subject in Wyatt v. Cole, 504

U.S. 158, 158 (1992), making clear that private actors are not entitled to the

qualified immunity that the Court described in Harlow v. Fitzgerald, 457 U.S.

800 (1982). Even then, the Court did “not foreclose the possibility that private

defendants faced with § 1983 liability … could be entitled to an affirmative

defense based on good faith.” Wyatt, 504 U.S. at 169. Indeed, Wyatt

recognized that “principles of equality and fairness may suggest … that private

citizens who rely unsuspectingly on state laws they did not create and may

have no reason to believe are invalid should have some protection from

liability.” Id. at 168. The Court merely held that qualified immunity would not

offer that protection. See id.

5 In analyzing Plaintiffs’ § 1983 claims, the Court also assumes without deciding that

Janus applies retroactively.

Since Wyatt, numerous Circuit Courts of Appeals have stepped into the

breach left by the Supreme Court and recognized the existence of a good-faith

defense for private actors in § 1983 cases. See, e.g., Clement v. City of

Glendale, 518 F.3d 1090, 1097 (9th Cir. 2008) (holding that private defendants

may assert a good-faith defense against § 1983 cases); accord Vector Research,

Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 699 (6th Cir. 1996);

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1276-77 (3d Cir.

1994); Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir. 1993). More importantly,

the Second Circuit has recognized the good-faith defense, see Pinsky v.

Duncan, 79 F.3d 306, 311-13 (2d Cir. 1996), and has reaffirmed the existence

of that defense (albeit in a summary order) in circumstances remarkably

analogous to the ones presently before the Court, see Jarvis v. Cuomo, 660 F.

App’x 72, 75 (2d Cir. 2016) (summary order) (upholding the application of the

good-faith defense against claims that plaintiffs were owed refunds of agency

shop fees paid prior to the Supreme Court’s decision in Harris). Plaintiffs have

offered no compelling reason why this Court should ignore the Second Circuit,

as well as the thoughtful opinions of the other district courts that have heard

essentially the same claim. See, e.g., Babb v. Cal. Teachers Ass’n, 378 F. Supp.

3d 857, 872 (C.D. Cal. 2019) (collecting cases recognizing existence of good-

faith defense on substantially identical facts).6 This Court joins these courts in

finding that a good-faith defense exists under these circumstances.

6 Plaintiffs argue that the Supreme Court’s decision in Filarsky v. Delia, 566 U.S. 377

(2012), negates the need for the good-faith defense (see Pl. Opp. 10-11), but Filarsky

does not apply. Filarsky merely held that a private individual may obtain the protection

Plaintiffs raise numerous arguments as to why, even if a good-faith

defense exists for private actors in § 1983 cases, it would be inapplicable under

these circumstances. In particular, Plaintiffs argue that: (i) the good-faith

defense is inapplicable because the most analogous common-law tort here is

conversion, to which good faith is not a defense (see Pl. Opp. 11-12); (ii) the

good-faith defense only applies to individuals, not entities (see id. at 15);

(iii) the good-faith defense is limited to individuals fulfilling a governmental

function (see id. at 16); (iv) the good-faith defense is inapplicable because,

under the declaratory theory of law, Defendants cannot rely on Abood (see id.

at 7-8); (v) the good-faith defense is inapplicable because Plaintiffs seek

equitable relief additional to monetary damages (see id. at 8); (vi) Plaintiffs seek

the return of unconstitutionally taken property (see id.); (vii) Defendants

cannot establish that they acted in good faith (see id. at 16-20); and (viii) it is

inappropriate to make a finding of good faith at this stage of litigation (see id.

at 20-21). The Court addresses, and rejects, each of these arguments in the

remainder of this section.

a. Plaintiffs Misperceive the Common-Law Tort Analogue

Plaintiffs rely on the Fifth Circuit’s decision on remand in Wyatt and on

Pierson v. Ray, 386 U.S. 547 (1967), for the proposition that application of the

good-faith defense requires the court to determine the most closely analogous

of qualified immunity when they are essentially working as an adjunct to the

government. See 566 U.S. at 393-94. It does not address whether private actors,

working independently of the government, may rely in good faith on seemingly valid

state laws.

common-law tort to the alleged offense, and then determine whether good faith

was a defense to that tort in 1871, the year § 1983 was enacted. (See Pl.

Opp. 11-12). Several district courts, on the other hand, have eschewed such

analyses. See Mooney v. Ill. Educ. Ass’n, 372 F. Supp. 3d 690, 703 (C.D. Ill.

2019) (holding that reliance on the good-faith defense does not require a

determination of the most analogous common-law tort); see also Babb, 378 F.

Supp. 3d at 873 (explaining that Ninth Circuit precedent “gives no indication

that courts must analyze a common law analogue to apply the good-faith

defense”). For its part, the Court does not find either Pierson or the Fifth

Circuit’s remand decision in Wyatt to be particularly helpful as guides, given

that the former predates the Supreme Court’s landmark decisions in Lugar,

Harlow, and Wyatt, and is concerned with defenses available to state actors,

see Pierson, 386 U.S. at 556-57, while the latter is from a different Circuit.

However, the Court does consider the Second Circuit’s handling of the

question, principally in Pinsky and Jarvis. Unfortunately, even the guidance

from the Circuit is unclear: while Pinsky expressly engaged in the exercise of

identifying the most closely analogous tort, see 79 F.3d at 312, Jarvis did not

comment on the need for the analysis one way or the other, see 660 F. App’x at

75. The wisest course is to follow the clearer authority, and so the Court

agrees with Plaintiffs that it is appropriate to engage in an analysis of the most

closely analogous tort when deciding the applicability of the good-faith defense.

Where the Court parts company with Plaintiffs is on the results of that

analysis. Plaintiffs argue that the most closely analogous common-law tort in

this case is conversion. (See Pl. Opp. 12). Conversion occurs “when someone,

intentionally and without authority, assumes or exercises control over personal

property belonging to someone else, interfering with that person’s right of

possession.” Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 49-50

(2006). In addition, Plaintiff indirectly argues that because intent, or scienter,

is not an element of conversion, good faith has not been in the past and cannot

be now a defense to conversion. (See Pl. Opp. 12 n.63-66). Plaintiff’s argument

doubly fails. First, the Second Circuit held in Jarvis that it is irrelevant

whether the underlying tort contains a scienter element. See 660 F. App’x at

75 (holding that the specific elements of the underlying tort are irrelevant

because “affirmative defenses [like the good-faith defense] need not relate to or

rebut specific elements of an underlying claim”).

Second, even if the Court were to disregard Jarvis and accept that a

scienter element is needed for the good-faith defense to apply, the defense

would still apply here because conversion is not, in fact, the most closely

analogous common-law tort. As other district courts have noted, “Plaintiffs’

First Amendment claim turns not upon the Union Defendants’ receipt of

Plaintiffs’ property, but upon the dignitary harm resulting from being

compelled to support speech with which they disagree.” Babb, 378 F. Supp. 3d

at 873. Indeed, Defendants note that Plaintiffs’ core injury stems from

“Defendants’ use of governmental process, § 208(3), to violate their First

Amendment rights.” (See Def. Br. 16). This injury does not mirror conversion;

it mirrors abuse of process. See Dowd v. DeMarco, 314 F. Supp. 3d 576, 585

(S.D.N.Y. 2018) (“[T]he gist of abuse of process is the improper use of process

after it is regularly issued.” (emphasis removed) (quoting Curiano v. Suozzi, 63

N.Y.2d 113, 116 (1984))); see also Wyatt, 504 U.S. at 164 (describing abuse of

process as a “cause[] of action against private defendants for unjustified harm

arising out of the misuse of governmental processes”). Other district courts

have likewise found abuse of process to be an apt analogy for Plaintiffs’ harm.

See, e.g., Diamond, 399 F. Supp. 3d at 398; Babb, 378 F. Supp. 3d at 873;

Carey v. Inslee, 364 F. Supp. 3d 1220, 1230 (W.D. Wash. 2019); Cook v.

Brown, 364 F. Supp. 3d 1184, 1191-92 (D. Or. 2019). Because intent is an

element of abuse of process under New York law, see Gilman v. Marsh &

McLennan Cos., Inc., 868 F. Supp. 2d 118, 131 (S.D.N.Y. 2012), the good-faith

defense applies even under Plaintiffs’ preferred rules of analysis.

b. The Good-Faith Defense Applies to Both Individuals and

Entities

Plaintiffs next contend, in reliance on Owen v. City of Independence, 445

U.S. 622 (1980), that the good-faith defense only applies to individuals, and

cannot be raised by entities. (See Pl. Opp. 15). However, Plaintiffs’ reliance on

Owen is faulty. As Defendants note (see Def. Br. 19), Owen discusses whether

municipalities are entitled to qualified immunity (and discusses such immunity

prior to the Supreme Court’s retooling of the entire qualified immunity doctrine

in Harlow), see 445 U.S. at 638. Owen says nothing about the good-faith

defense as discussed in Wyatt and then applied by numerous circuit courts,

including the Second Circuit. See, e.g., Jarvis, 660 F. App’x at 75-76 (finding

that defendant union was entitled to good-faith defense); Clement, 518 F.3d at

1096-97 (finding that private towing company was entitled to good-faith

defense); Vector Research, 76 F.3d at 699 (finding law firm could raise good-

faith defense); Jordan, 20 F.3d at 1276-77 (same). Moreover, as the Mooney

court aptly explained, the good-faith defense and qualified immunity are not

coterminous, and the rationales motivating the application of qualified

immunity — and its application to municipalities — do not apply in the context

of the good-faith defense and private actors. See 372 F. Supp. 3d at 704-05.

Therefore, the Court does not accept Plaintiffs’ proposed limitation on the good-

faith defense.

c. The Good-Faith Defense Is Not Limited to Governmental

Functions

Plaintiffs rely again on Filarsky v. Delia, 566 U.S. 377 (2012), this time

for the proposition that the good-faith defense should be limited to actions

fulfilling a governmental function. (See Pl. Opp. 16). Not only do Plaintiffs

provide no support for such a limitation in any prior application of the good-

faith defense, but Filarsky actually argues against Plaintiffs’ position. As

already noted, the Filarsky court held that private individuals acting in a

governmental capacity are entitled to qualified immunity. See 566 U.S. at 393-

94. If such individuals are already protected by qualified immunity, why

should they also need a good-faith defense? Such an interpretation of either

Filarsky or the good-faith defense would make the defense redundant. The

Court accordingly rejects such an interpretation.

d. The Declaratory Theory of Law Does Not Foreclose the

Good-Faith Defense

Undeterred, Plaintiffs next argue that under the “declaratory theory of

law,” Defendants cannot rely on N.Y. Civ. Serv. Law § 208 as a defense for their

unconstitutional conduct. (See Pl. Opp. 7-8). The crux of Plaintiffs’ argument

seems to be not only that § 208 is unconstitutional and therefore must be

considered completely void (see id. at 6 (citing Reynoldsville Casket Co. v.

Hyde, 514 U.S. 749, 760 (1995)), but also that the declaratory theory of law

requires this Court to consider § 208 as if it had always been invalid (see id. at

7). Thus, the argument goes, Defendants cannot say that their conduct was

lawful because § 208 was valid under Abood, because in the deeper, more

metaphysical sense of the law, Abood and all laws authorized by it have never

been valid. As support, Plaintiffs point to Richardson v. United States, 465 F.2d

844, 850 (3d Cir. 1972) (en banc), rev’d on other grounds, 418 U.S. 166 (1974),

wherein the Third Circuit refused to allow the Government to rely on the

Central Intelligence Agency Act for a defense when it was claimed that the Act

was unconstitutional, writing that an unconstitutional law is “void and of no

effect.”

While the Court agrees with Plaintiffs that a defendant cannot simply

argue that conduct was constitutional at the time in order to escape liability for

unlawful conduct, that is not the issue before the Court. Instead, the Court is

determining whether Defendants may assert the good-faith defense, a

recognized affirmative defense in § 1983 actions. And there is no question that

while a party cannot merely point to a void law as a basis for relief, see

Reynoldsville, 514 U.S. at 751, a party can still rely on “a previously existing,

independent legal basis,” see id. at 759. The good-faith defense is such an

independent legal basis, see Diamond, 399 F. Supp. 3d at 396, and thus

Plaintiffs’ argument based on the “declaratory theory” must fail. Indeed, were

the Court to find otherwise and adopt Plaintiffs’ interpretation of the

“declaratory theory,” the Court would have to ignore Second Circuit precedent

and find that there could never be a good-faith defense in § 1983 actions. It is

not the Court’s place to make such a finding, and so it will not.

e. Plaintiffs’ Effort to Recast Their Claims as Equitable

Claims Fails

Although Plaintiffs do not clearly articulate it, the Court reads Plaintiffs’

briefing as making an argument that they are entitled to a refund of their

agency shop fees as a matter of equity, as opposed to law. (See Pl. Opp. 8

(arguing that Defendants took Plaintiffs’ property based on an unconstitutional

statute, and that both law and equity require that property’s return)). Plaintiffs

do not articulate how, if at all, an equitable claim would preclude Defendants’

entitlement to the good-faith defense. However, insofar as the distinction

between legal and equitable claims is relevant, Plaintiffs’ claims clearly sound

in law, not equity. As other district courts have noted, Plaintiffs seek a

repayment of previously paid agency shop fees “not from particular funds or

property in the [D]efendant[s]’[] possession, … but from Union Defendants’

general assets.” See, e.g., Diamond, 399 F. Supp. 3d at 400-01 (internal

quotation marks and citation omitted) (citing Great-West Life & Annuity Ins. Co.

v. Knudson, 534 U.S. 204, 213 (2002)). Indeed, as in the other district court

cases, see, e.g., id. at 401 (collecting similar cases), Plaintiffs’ core claim is that

Defendants PSC, FASCCC, and UPP either spent the collected agency shop fees

or forwarded them to the other Defendants (see Am. Compl. ¶¶ 3-5). “[W]here

the property sought to be recovered or its proceeds have been dissipated so

that no product remains, the plaintiff’s claim is only that of a general creditor.”

Knudson, 534 U.S. at 213-14 (internal quotation marks and brackets omitted).

Therefore, this Court joins other courts in finding that Plaintiffs’ have

presented solely legal claims.

f. Plaintiffs’ Potential Entitlement to the Return of

Property Does Not Foreclose a Good-Faith Defense

Plaintiffs claim that “wrongfully taken property must always be returned

when the statute relied on for taking the property is later declared

unconstitutional.” (See Pl. Opp. 8). But Plaintiffs’ proffered authorities do not

stand for such a broad proposition, and even if they did, they say nothing

about a good-faith defense in a § 1983 suit for monetary damages. Harper v.

Virginia Department of Taxation, 509 U.S. 86, 98-99 (1993), deals with whether

a court must apply a judicial decision retroactively; Wyatt v. Cole, 994 F.2d at

1115, held that defendants can, in fact, rely in good faith on a statute later

declared unconstitutional; United States v. Lewis, 478 F.2d 835, 836 (5th Cir.

1973), discusses whether a criminal defendant is entitled to a return of fines

paid pursuant to a guilty plea to a statute subsequently determined to be

unconstitutional; United States v. Venneri, 782 F. Supp. 1091, 1093 (D. Md.

1991), similarly addressed the return of restitution paid by a criminal

defendant on the basis of what was later found to be an unlawful (but not

unconstitutional) conviction; and United States v. Rayburn House Office

Building Room 2113, 497 F.3d 654, 656 (D.C. Cir. 2007), mandated the return

of documents seized in violation of the Speech or Debate Clause of the

Constitution. These cases, whether taken separately or in the aggregate, do

not speak to Plaintiffs’ rule. Moreover, with the exception of Wyatt, each is

easily distinguishable from the particular circumstances before the Court —

Plaintiffs seeking a refund of money that was deducted pursuant to statutes

drafted in full compliance with prevailing Supreme Court precedent. As

observed by another district court, “in situations where the Supreme Court has

reversed a prior ruling but not specified that the party before it is entitled to

retrospective monetary relief, it seems unlikely that lower courts should even

consider awarding retrospective monetary relief based on conduct the Court

had previously authorized.” Bermudez v. Serv. Emps. Int’l Union, Local 521,

No. 18 Civ. 4312 (VC), 2019 WL 1615414, at *1 (N.D. Cal. Apr. 16, 2019). This

Court agrees.

g. Defendants’ Are Entitled to the Good-Faith Defense as a

Matter of Law

In the absence of other obstacles to the application of the good-faith

defense, Plaintiffs argue that Defendants did not, in fact, act in good faith. (See

Pl. Opp. 16). In support of this argument, Plaintiffs devote four pages of their

briefing to detailing Defendants’ alleged violations of Chicago Teachers Union,

Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986), and other cases by

overcharging Plaintiffs. (See id. at 17-20). These claims are neither alleged in

Plaintiffs’ Amended Complaint, nor are they matters of which the Court may

take judicial notice. See Fed. R. Evid. 201 (“The court may judicially notice a

fact that is not subject to reasonable dispute.”). Indeed, they are

fundamentally different claims, and they fall far outside the “narrow universe of

materials” the Court may consider on a Rule 12(b)(6) motion. See Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). Therefore, the Court will not

consider those allegations.

Plaintiffs also argue Defendants could not have acted in good faith

because they were “on notice” about Abood’s shaky foundations. (See Pl.

Opp. 16). As a matter of Second Circuit precedent, this argument fails. See

Jarvis, 660 F. App’x at 76 (finding defendants not liable for collection of agency

shop fees “[b]ecause it was objectively reasonable for [defendant] ‘to act on the

basis of a statute not yet held invalid’” (quoting Pinsky, 79 F.3d at 313)).

Moreover, as other district courts have noted, Plaintiffs’ position would “imperil

the rule of law,” see Cook, 364 F. Supp. 3d at 1193, since it would lead to

individuals disregarding Supreme Court precedent based on their personal

divinations of what the law might become at some future date. As every other

district court that has considered the issue has found, Defendants were

entitled to rely on what was indisputably the law of the land at the time. See,

e.g., Danielson v. Am. Fed’n of State, Cty., & Mun. Emps., Council 28, AFL-CIO,

340 F. Supp. 3d 1083, 1086-87 (W.D. Wash. 2018). The good-faith defense

does not require a defendant to be clairvoyant.

Moreover, the Court finds that Defendants have satisfied the

requirements of the good-faith defense, even in the context of a Rule 12(b)(6)

motion. As the Second Circuit has recognized, the good-faith defense provides

that “private defendants … may be held liable for damages under § 1983 only if

they … knew or should have known that the statute upon which they relied

was unconstitutional.” See Pinsky, 79 F.3d at 311 (quoting Wyatt, 994 F.2d at

1118). And as already mentioned, in the Second Circuit it is “objectively

reasonable” to rely on a “statute not yet held invalid.” See Jarvis, 660 F. App’x

at 76 (quoting Pinsky, 79 F.3d at 313). There is no dispute that Defendants

collected agency fees as authorized by N.Y. Civ. Serv. Law § 208(3) and in full

compliance with then-binding Supreme Court precedent; nor have Plaintiffs

shown, if the Court were to apply a subjective standard, that Defendants knew

or should have known that § 208(3) was unconstitutional. Therefore, the Court

must find as a matter of law that Defendants acted in good faith and cannot be

held liable for monetary damages under § 1983.

h. Plaintiffs Are Not Entitled to Discovery on Good Faith

As a final matter, Plaintiffs assert that it would be inappropriate for the

Court to decide whether Defendants have asserted the good-faith defense

without allowing Plaintiffs to take discovery first. (See Pl. Opp. 20-21).

However, all the information the Court needs to make its finding appears on

the face of the Amended Complaint. As Plaintiffs acknowledge, it was not until

Janus that the Supreme Court declared compulsory agency shop fees in the

public sector to be unconstitutional. (See Am. Compl. Introduction). And as

already discussed, it was objectively reasonable for Defendants to rely on a

“statute not yet held invalid.” See Jarvis, 660 F. App’x at 76 (quoting Pinsky,

79 F.3d at 313). Indeed, Justice Kennedy noted in Wyatt that “there is support

in the common law for the proposition that a private individual’s reliance on a

statute, prior to a judicial determination of unconstitutionality, is considered

reasonable as a matter of law.” 504 U.S. at 174 (Kennedy, J., concurring)

(emphasis added). Given the objective reasonableness of Defendants’ reliance

on controlling law at the time, there is no need for discovery into Defendants’

state of mind at the time. Dismissal is both appropriate and warranted.

3. Plaintiffs Fail to State a Claim Under State Law

In addition to their federal claims under § 1983, Plaintiffs also bring

state-law claims for conversion and unjust enrichment. (See Am. Compl.

¶¶ 38-49). Defendants raise numerous arguments, including that these state-

law claims are precluded by N.Y. Civ. Serv. Law § 215. (See Def. Br. 21).

Section 215 provides:

Notwithstanding any other law to the contrary, any

public employer, any employee organization, … or any

of their employees or agents, shall not be liable for, and

shall have a complete defense to, any claims or actions

under the laws of this state for requiring, deducting,

receiving, or retaining agency shop fee deductions from

public employees, and current or former public

employees shall not have standing to pursue these

claims or actions, if the fees were permitted or

mandated at the time under the laws of this state then

in force and paid, through payroll deduction or

otherwise, prior to June [27, 2018].

N.Y. Civ. Serv. Law § 215(1) (McKinney 2019) (emphasis added). The statute

states expressly that it applies “to claims and actions pending or filed on or

after June [27, 2018].” Id. § 215(2).

Plaintiffs argue that § 215, despite its express language to the contrary,

does not apply here. (See Pl. Opp. 21). Their theory is that N.Y. Civ. Serv. Law.

§ 208 was never “in force,” since under the declaratory theory of law it was

always void, and therefore the fees collected were not permitted under any law.

(See id.). Although the Court appreciates that Plaintiffs may be correct about

§ 208’s metaphysical status, that does not mean that § 208 was not, in reality,

in force prior to Janus. For the purposes of the statute, § 208 was indeed in

force prior to June 27, 2018.

Moreover, although Plaintiffs do not raise the issue in their briefing, it is

clear that § 215 applies retroactively to Plaintiffs’ state-law claims. Under New

York law, “[a]mendments are presumed to have prospective application unless

the Legislature’s preference for retroactivity is explicitly stated or clearly

indicated.” Matter of Gleason, 96 N.Y.2d 117, 122 (2001) (citing People v.

Oliver, 1 N.Y.2d 152, 157 (1956)). Additionally, “remedial legislation should be

given retroactive effect in order to effectuate its beneficial purpose.” Id. (citing

Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 584 (1998)).

“Remedial statutes are those designed to correct imperfections in the prior

law.” N.Y. Stat. § 54(a), Comment (McKinney 2019).

Section 215 expressly provides for retroactive application by stating that

it applies “to claims and actions pending or filed on or after” June 27, 2018,

see N.Y. Civ. Serv. Law § 215(2), which includes actions filed prior to the

statute’s enactment in April 2019. Section 215 is also a remedial statute

because it was designed to ensure that employee organizations, among others,

would remain free from liability for the previously lawful collection of agency

shop fees now that Janus has made such conduct unlawful. Cf. Majewski, 91

N.Y.2d at 584-85 (describing legislation as “remedial” when it was enacted to

restore immunity to tort liability following a Court of Appeals decision). Thus,

there is no question that § 215 is retroactive legislation and applies to the

matter at hand.

Nevertheless, Plaintiffs contend that § 215 is unconstitutional under

both the United States and New York7 constitutions. Specifically, Plaintiffs

allege that § 215 (i) violates the procedural and substantive due process

protections provided by both constitutions; (ii) constitutes an unlawful taking

in violation of the Fifth Amendment, as incorporated through the Fourteenth

Amendment; and (iii) violates Article VII, § 6 of the New York State

Constitution. The Court will address each argument in turn.

a. Section 215 Does Not Violate Plaintiffs’ Procedural Due

Process Rights

Both the federal and New York State constitutions provide that “[n]o

person shall … be deprived of life, liberty or property, without due process of

law.” U.S. Const. amend. V; N.Y. Const. Art. I, § 6 (McKinney, Westlaw

through L. 2019, chapter 579). “Procedural due process imposes constraints

on governmental decisions which deprive individuals of ‘liberty’ or ‘property’

7 The Court of Appeals, New York’s highest court, reads New York’s due process

guarantee as largely coterminous with the due process guaranteed under the U.S.

Constitution. See Am. Econ. Inst. Co. v. State, 30 N.Y.3d 136, 157-58 (2017); People v.

David W., 95 N.Y.2d 130, 136 (2000). Therefore, the Court will offer a merged analysis

of the federal and state constitutional due process claims, as opposed to disaggregating

them.

interests,” Mathews v. Eldridge, 424 U.S. 319, 332 (1976), by requiring the

Government to provide some sort of procedural protections when a deprivation

occurs, see Zinermon v. Burch, 494 U.S. 113, 125-27 (1990). However, as the

Supreme Court has recognized, “the State remains free to create substantive

defenses or immunities for use in adjudication,” Logan v. Zimmerman Brush

Co., 455 U.S. 422, 432 (1982); accord Stoianoff v. Commissioner of Motor

Vehicles, 107 F. Supp. 2d 439, 448 (S.D.N.Y. 2000), aff’d sub nom. Stoianoff v.

Commissioner of Department of Motor Vehicles, 12 F. App’x 33 (2d Cir. 2001)

(summary order), and when it does so, “the legislative determination provides

all the process that is due,” Logan, 455 U.S. at 433. Indeed, the Supreme

Court held as much in Martinez v. California, where it recognized that even if

California’s immunity statute had deprived plaintiffs of a property interest, it

had not done so without due process. See 444 U.S. 277, 281-83 (1980).

Relevantly, the Court also wrote that “the State’s interest in fashioning its own

rules of tort law is paramount to any discernable federal interest, except

perhaps an interest in protecting the individual from state action that is wholly

arbitrary or irrational.” Id. at 282.

Here, the New York legislature’s determination to immunize those

involved in the collection of agency shop fees from liability is all the process

that Plaintiffs are due. Plaintiffs primarily rely on Logan (see Pl. Opp. 22-23),

but as already noted, Logan cuts against Plaintiffs by reaffirming that the

legislative process satisfies any procedural due process concerns, see 455 U.S.

at 433. The Supreme Court’s finding that the Constitution entitles the

claimant to “some form of hearing,” see Logan, 455 U.S. at 433, is limited to

when the State institutes “a procedural limitation on the claimant’s ability to

assert his rights,” as opposed to altering “a substantive element of the …

claim,” see id. Moreover, insofar as solely federal constitutional claims are

concerned, it cannot be argued that the New York legislature’s action was

“wholly arbitrary or irrational.” The legislature wanted to protect those who

had relied in good faith on § 208, a statute designed in full compliance with

prevailing Supreme Court precedent at the time. The Court cannot regard

such an objective or action as irrational. Section 215 comports fully with

procedural due process.

b. Section 215 Does Not Violate Plaintiffs’ Substantive Due

Process Rights

Whereas the procedural component of due process ensures that no

deprivation occurs without adequate procedural safeguards, see Zinermon, 494

U.S. at 125-27, substantive due process “guard[s] the individual against ‘the

exercise of power without any reasonable justification in the service of a

legitimate governmental objective,’” Lombardi v. Whitman, 485 F.3d 73, 79 (2d

Cir. 2007) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

However, “[g]enerally speaking, state laws need only be rational and non-

arbitrary in order to satisfy the right to substantive due process.” Gibson v.

Am. Cyanamid Co., 760 F.3d 600, 614 (7th Cir. 2014). Indeed, as the New

York Court of Appeals has noted, “the test of due process for retroactive

legislation ‘is met simply by showing that the retroactive application of the

legislation is itself justified by a rational legislative purpose.’” Am. Econ. Ins.

Co. v. State, 30 N.Y.3d 136, 158 (2017). As already noted, the Court does not

view the legislature’s decision to immunize those who lawfully collected agency

shop fees prior to Janus as irrational.

Alternatively, retroactive legislation can run afoul of substantive due

process if it impairs “vested or property rights.” See All. of Am. Insurers v. Chu,

77 N.Y.2d 573, 586 (1991); cf. Davis, 379 F. Supp. 3d at 252-53 (explaining

that a plaintiff can show a substantive due process violation where there is a

“valid property interest,” or “property right,” and an infringement of that right

“in an arbitrary or irrational manner”). However, Plaintiffs currently have no

property interest that the legislation can impair or infringe, as property rights

in a cause of action do not vest until “a final unreviewable judgment” has been

obtained. See Worldwide Directories, S.A. De C.V. v. Yahoo! Inc., No. 14 Civ.

7349 (AJN), 2016 WL 1298987, at *6 (S.D.N.Y. Mar. 31, 2016) (quoting Ileto v.

Glock, Inc., 565 F.3d 1126, 1141 (9th Cir. 2009)); see also Hosp. Ass’n of N.Y.

State, Inc. v. Tola, 577 F.2d 790, 797 (2d Cir. 1978) (affirming district court’s

finding that “hospitals possessed no vested right in the judgment entitling it to

protection under the Due Process Clause because it had not yet become final

and unreviewable”); Hodes v. Axelrod, 70 N.Y.2d 364, 370 (1987) (explaining

that “vested rights doctrine” protects a judgment from subsequent legislation

“after [the judgment] becomes final”). Given the lack of any vested right or

arbitrary behavior on the part of the legislature, the Court finds that § 215 also

does not violate substantive due process.

c. Section 215 Does Not Violate the Takings Clause

The Fifth Amendment of the U.S. Constitution and Article I, § 7 of the

New York State Constitution provide that private property shall not “be taken

for public use, without just compensation.” U.S. Const. amend. V; N.Y. Const.

Art. I, § 7. As Plaintiffs note (see Pl. Opp. 24), the Takings Clause “prevents the

Legislature (and other government actors) from depriving private persons of

vested property rights,” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994)

(emphasis added). Plaintiffs’ argument, therefore fails for the same reason

their substantive due process argument fails — they possess no vested

property right, and thus nothing has been taken from them. Section 215 does

not run afoul of the Takings Clause.

d. Section 215 Does Not Violate Article VII, § 6 of the New

York State Constitution

Plaintiffs’ final argument for § 215’s invalidity is that it violates Article

VII, § 6 of the New York State Constitution, which provides that “[n]o provision

shall be embraced in any appropriation bill … unless it relates specifically to

some particular appropriation in the bill.” Section 215 was enacted as part of

the 2019 appropriation bill, see generally N.Y. Legis. 56 (McKinney 2019), and

therefore must comport with Article VII, § 6. The bar, however, is low. In

Schuyler v. S. Mall Constructors, 303 N.Y.S.2d 901, 903 (3d Dep’t 1969), the

court held that a provision in the appropriation bill to negotiate a contract for

the construction of a public building at the Albany South Mall was in

compliance with Article VII, § 6 because the bill appropriated money “for the

construction of State buildings and other public improvements, including the

erection of the building in question.” The court found that the provision

“relate[d] specifically to some particular appropriation in the bill[] even though

the ‘particular appropriation’ to which it relate[d] [was] not precisely itemized in

the general appropriation bill.” Id. at 904. Similarly, the Appellate Division

upheld the creation of the Commission on Legislative, Judicial, and Executive

Compensation via appropriation bill because the Commission’s purpose — “to

provide for periodic review of the compensation of state officers — relate[d] to

items of appropriation in the budget.” Ctr. for Judicial Accountability, Inc. v.

Cuomo, 91 N.Y.S.3d 553, 559 (3d Dep’t 2018). Reading these cases together,

the common theme is that there must be a rational relationship between the

challenged provision and a general item of appropriation in the budget; there is

no need to tie the provision to a specific, itemized appropriation. Therefore,

insofar as the budget appropriates funds for the compensation of public

employees, the Court finds that § 215 relates to “some particular

appropriation” in the budget because § 215 governs liability for those

individuals and entities managing public employees’ paychecks. Plaintiffs’ final

challenge to § 215 fails, and the Court thus finds that § 215 precludes all of

Plaintiffs’ state-law claims.

In sum, the Court joins the numerous other district courts that have

heard substantially the same facts, claims, and arguments, in finding that

Plaintiffs have failed to state any claim upon which relief may be granted.

Moreover, Plaintiffs are not entitled to either injunctive relief or a declaratory

judgment because they lack standing to request such prospective relief.

Accordingly, Defendants’ motions to dismiss are granted in full.

CONCLUSION

For the reasons set forth in this Opinion, Defendants’ motion to dismiss

is GRANTED and Plaintiffs’ claims are DISMISSED WITH PREJUDICE. The

Clerk of Court is directed to terminate all pending motions, adjourn all

remaining dates, and close this case.

SO ORDERED.

Dated: January 3, 2020 4 ot

New York, New York Kittens Mal. flr

KATHERINE POLK FAILLA

United States District Judge

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